Photo-Illustration: Vulture; Photos by Leon Bennett/WireImage and Gareth Cattermole/Getty Images for Disney
On July 25, 2022, four days before Beyoncé was set to stop the world with her new album Renaissance, a Kelis fan page on Instagram claimed that a track would sample one of the hip-hop artist’s early 2000s hits. Beyoncé, it turned out, appears to have interpolated Kelis’s 2003 song “Milkshake” on her new track “Energy.” Responding to the fan page, Kelis claimed that Beyoncé did so without giving her a heads-up and slammed the Neptunes’ Pharrell Williams and Chad Hugo, with whom she worked on the single decades ago, for not originally giving her credit. “My mind is blown too because the level of disrespect and utter ignorance of all 3 parties involved is astounding,” Kelis commented. “I heard about this the same way everyone else did. Nothing is ever as it seems, some of the people in this business have no soul or integrity and they have everyone fooled.”
Kellis doubled down on her criticism in subsequent Instagram videos, claiming that Williams was “petty” and “does this shit all the time” out of spite. “I have the right to be frustrated,” Kelis remarked. “Why? Because no one had the human decency to call and go, ‘Hey, we’d like to use your record.’ The reason I’m annoyed is because I know it was on purpose.” Williams and Chad are listed as the writer-composers of “Milkshake” — and Kelis is listed as a performer. “I know what I own and what I don’t own,” Kelis said. “I also know the lies that were told. I also know the things that were stolen. Publishing was stolen, people were swindled out of rights — it happens all the time, especially back then.” While Kelis is making her case in the court of public opinion, two law professors told Vulture that it’s virtually impossible for her to take legal action. Below, a beat-by-beat breakdown why.
What is Kelis accusing Beyoncé, Pharrell, and Chad Hugo of, exactly?Kelis seems to have made a number of allegations, ranging from professional to personal to quasi-legal. At the most basic level, Kelis is claiming that Beyoncé didn’t tell her about using part of “Milkshake” and complaining that she was cheated out of her rights by Williams and Hugo. Because of the apparent copyright situation — remember, Kelis isn’t listed as a writer-composer, Williams and Hugo are — all she can really do is vent. The way Beyoncé apparently used “Milkshake” is also important here. Beyoncé appeared to interpolate “Milkshake” — that is, use portions of the written music — but not outright sample it, as sampling entails using the actual recording.
So how does copyright work with all this?
Peter Nicolas, William L. Dwyer endowed chair in law at the University of Washington, broke down how copyrights work in both sampling and interpolation situations. “With every song that you’ve got out there, there’s going to be two independent copyrights. One is to the underlying musical composition, the sort of notes on paper, if you will, that’s one copyright, and that’s typically owned by the songwriter — although they often assign those rights to a publisher,” Nicolas said. “The other copyright is to the actual sound recording — so, the actual recording of a particular performance of that song.” If an artist wants to sample something, they need to get the okay from both of these copyright owners.
Joseph Fishman, a professor of law at Vanderbilt University, added that with interpolation, “You’re not using that original recording. You’re recreating it in the studio, and that distinction is important — because if we’re only talking about an interpolation here, rather than a sample, that means nothing having to do with the sound-recording copyright is implicated.”
Does Kelis Have any say over sampling and interpolation?
“Kelis seems to be making a claim, perhaps, that she has some role in the original musical composition, but at least on paper, it looks like if she ever had any rights. She may have signed those over or signed something making it clear that she didn’t have any,” Nicolas said. “So again, to the extent that she has those rights, she certainly could sue, but it’s ultimately whoever owns those rights, whether originally or had it transferred to them, who can ultimately make these decisions. Kelis may also just be making a sort of separate moral-slash-ethical argument that Beyoncé should have given her the heads-up that she was going to be making use of this.”
Did Beyoncé need to tell Kelis about using “Milkshake”?
“We’d say maybe it’s a professional courtesy that you just give the heads-up, but again, no legal obligation,” Nicolas said. Fishman voiced similar sentiments, stating, “Probably not, unless there’s a provision in a contract that would bind the sampling party.” Fishman pointed to several exceptions, but those involved situations where artists’ voices were used in marketing materials without their okay, which is a very different situation. “We’re not talking about Kelis’s voice. We’re talking about the underlying track and, as far as I know, we’re talking about use in another song rather than use in a commercial, so I don’t see those as being all that helpful to Kelis here,” Fishman said.
Can the Neptunes get into legal trouble for any of this?
The chances of this are slim to none. “She may be arguing that there was something wrong about that contract that she signed. She refers to her age, but again, if she was of legal age to enter into a contract, it’s probably going to be an uphill climb to try to challenge that, especially with any sort of statute of limitations,” Nicolas said. This isn’t the first time Kelis has cried foul over her treatment by the Neptunes. Kelis alleged in a January 2020 Guardian interview that she didn’t make any money from the sales of her first two albums, which were produced by the Neptunes. “I was told we were going to split the whole thing 33-33-33, which we didn’t do,” Kelis reportedly said, later adding, “Their argument is ‘Well, you signed it.’ I’m like, ‘Yeah, I signed what I was told, and I was too young and too stupid to double-check it.’”
What about Beyoncé?
“My sense is that Beyoncé is a pretty sophisticated player and probably had her legal team make sure that whoever owned the rights to those things was giving her permission, because it’s definitely the case that if Beyoncé did it without permission from the copyright owners, that she could be sued even for a short” sample of interpolation, Nicolas explained. Beyoncé is crediting the Neptunes’ songwriting for “Milkshake.” The credits on “Energy” state: “Contains an Interpolation of ‘Milkshake’ Written by Pharrell Williams, Chad Hugo and Performed by Kelis,” according to Pitchfork.
Could Kelis get credit on her original song at this point?
Kelis doesn’t seem to have any viable legal path for even getting songwriting credit for “Milkshake” by now or other songs she might feel cheated out of. It’s always possible that Kelis could sit down with Williams and Hugo and try renegotiating, but there’s nothing requiring that to happen. “It’s a good cautionary tale for young artists about making sure that you understand what it is that you’re signing away,” Nicolas said.
Why would Beyoncé credit people on songs if they’re not actually sampled?
Anyone who’s looked at the credits on Renaissance knows that Beyoncé credits a lot of people, even if it doesn’t seem like their music is outright in the song. Again, this is because of copyright. If a song interpolates another artist’s song, using the music but not the performance — the way “Milkshake” is interpolated in “Energy” — the people with songwriting credit would be listed. This would be the case even if they didn’t actually write or compose the song, as it comes down to who owns the copyright. As with Kelis, Beyoncé is listing performers of interpolated songs. Something for the children.